SIDNEY VANNOY v. DR. JOSEPH A. MILUM, M.D. AND MULTICARE SPECIALISTS, P.S.C.
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RENDERED:
AUGUST 26, 2005; 2:00 P.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001073-MR
SIDNEY VANNOY
v.
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE CHARLES W. BOTELER, JR., JUDGE
ACTION NO. 02-CI-00168
DR. JOSEPH A. MILUM, M.D.
AND MULTICARE SPECIALISTS, P.S.C.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON, AND MINTON, JUDGES.
BUCKINGHAM, JUDGE:
Sidney Vannoy appeals from a summary
judgment entered by the Hopkins Circuit Court dismissing his
medical malpractice complaint against Dr. Joseph A. Milum and
Multicare Specialists, P.S.C.
The issue concerns whether the
circuit court correctly ruled as a matter of law that the oneyear statute of limitations had expired prior to Vannoy filing
his complaint.
More specifically, the issue involves the
applicability of the discovery rule and when Vannoy’s cause of
action accrued.
Because we conclude that the circuit court
correctly awarded summary judgment to Dr. Milum and Multicare
Specialists, we affirm.
Dr. Milum was employed by Multicare Specialists,
P.S.C., and he served for a period of time as Vannoy’s treating
physician.
In April 1998, Vannoy was hospitalized for a foot
infection.
In order to treat what was diagnosed as a foot
ulcer, Dr. Milum, after consulting with other physicians,
elected to prescribe the antibiotic gentamicin.
The gentamicin
therapy was initiated during Vannoy’s hospitalization, and he
continued with it through a home health care provider after
being discharged.
Throughout the treating period, lab tests were done to
provide figures on the various chemical levels within Vannoy’s
body.
The results of these tests were forwarded to various
physicians, including Dr. Milum, in order to allow them to
monitor the effect the gentamicin had on Vannoy.
On May 26, 1998, Vannoy suffered dizziness while at
physical therapy at the hospital.
He was immediately taken to
the hospital emergency room, and the emergency room physician
called Dr. Milum to inform him of the problem.
Dr. Milum saw
Vannoy three days later for an office visit, and he elected to
continue the gentamicin therapy.
Vannoy was allowed to stop the
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therapy on June 10, 1998, after a determination was made that
the foot ulcer had been resolved.
Vannoy continued to suffer thereafter from dizziness
and balance problems.
In following up on these symptoms, he
underwent tests that established he had vestibular damage to his
middle ear.
Dr. Milum, as well as several specialists to whom
Vannoy was referred, attributed the harm, at least in part, to
the use of gentamicin.
Throughout the remainder of 1998, Vannoy
consulted with various physicians in an attempt to resolve his
continued problems from the vestibular damage.
During late 1998 and early 1999, Vannoy obtained
copies of his medical records from the various places at which
he had received treatment.
In the spring of 1999, he had his
wife contact a Madisonville attorney, Wendell Holloway, and in
April 1999 Vannoy’s medical records were given to Holloway for
his review.
When asked why they took the records to Holloway,
Vannoy’s wife stated in her deposition that:
I am not sure how to answer that; like
I said, I just – I didn’t – I just – I
didn’t know if we even had a case about –
from anybody, no claim for nothing. I
wanted him to just look into all these
medical records and just see if he can come
up with anything that would help us showing
that – that any – that the medicine was
wrong, or anything was wrong.
Vannoy met with Holloway on September 10, 1999.
the Vannoys characterized the meeting as being focused on
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While
Vannoy’s Social Security disability claim, Holloway testified
that he specifically remembered discussing the costs of medical
experts if a lawsuit were pursued.
Holloway further testified
that he felt the Vannoys wanted, but did not receive, any
encouragement from him concerning a possible lawsuit.
Subsequently, Vannoy’s medical records were picked up from
Holloway’s office.
In April 2001, Vannoy’s daughter discovered a website
for persons suffering from vestibular damage.
The Vannoys
followed up on the information their daughter had discovered,
and they contacted Lynn Brown of Pell City, Alabama.
Brown had
developed vestibular damage as a result of gentamicin therapy,
and she recommended them to Jerry Campbell, an attorney in
Vicksburg, Mississippi, whom she had assisted in a separate
gentamicin case.
The Vannoys got in touch with Campbell later that
month, and on April 30, 2001, Campbell informed the Vannoys that
in his opinion Vannoy had a medical malpractice claim against
Dr. Milum and Multicare Specialists.
On March 4, 2002, Vannoy
filed a civil complaint in the Hopkins Circuit Court against Dr.
Milum and Multicare Specialists.
Following the completion of discovery, including
depositions, Dr. Milum and Multicare Specialists filed a motion
for summary judgment, arguing that the statute of limitations
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barred Vannoy’s claims.
On May 19, 2004, the circuit court
granted the summary judgment motion.
The court stated, “The
Court concludes as a matter of law that at least by that date,
September, 1999, a reasonable person would be under the
obligation to inquire as to the poor result from the gentamicin
therapy which would include the medical care provided by Dr.
Milum.
The complaint in this case, filed March 11, 2002, was
thus not timely.”
In reaching this conclusion, the court noted it was
undisputed that Vannoy was aware by the summer of 1998 that the
source of his harm was related to the gentamicin therapy.
Further, the court noted that Vannoy had gathered his medical
records and taken them to Holloway for review to determine, in
the words of Vannoy’s wife, “if the medicine was wrong.”
Vannoy
then timely appealed from the entry of the summary judgment
order by the circuit court.
In Kentucky, summary judgment “shall be rendered
forthwith if the pleadings, depositions, answers to
interrogatories, stipulations, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to
a judgment as a matter of law.”
CR 1 56.03.
“The record must be
viewed in a light most favorable to the party opposing the
1
Kentucky Rules of Civil Procedure.
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motion for summary judgment and all doubts are to be resolved in
his favor.”
Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807
S.W.2d 476, 480 (Ky. 1991).
“Even though a trial court may
believe the party opposing the motion may not succeed at trial,
it should not render a summary judgment if there is any issue of
material fact.”
Id.
“The standard of review on appeal of a summary
judgment is whether the trial court correctly found that there
were no genuine issues as to any material fact and that the
moving party was entitled to judgment as a matter of law.”
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996).
“There is
no requirement that the appellate court defer to the trial court
since factual findings are not at issue.”
Id.
KRS 2 413.140(1)(e) provides that there is a one-year
statute of limitations for the filing of negligence or
malpractice claims against physicians.
In connection with the
one-year statute of limitations, there is a discovery rule which
addresses when the cause of action shall be deemed to have
accrued.
That statute states:
In respect to the action referred to in
paragraph (e) of subsection (1) of this
section, the cause of action shall be deemed
to accrue at the time the injury is first
discovered or in the exercise of reasonable
care should have been discovered; provided
that such action shall be commenced within
2
Kentucky Revised Statutes.
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five (5) years from the date on which the
alleged negligent act or omission is said to
have occurred.
KRS 413.140(2).
Relying on the discovery rule, Vannoy argues that the
one-year statute of limitations did not begin to accrue until
April 30, 2001.
That was the date his attorney, Campbell, told
him he had an actionable claim against Dr. Milum.
Vannoy
acknowledges that he knew his dizziness was caused, at least in
part, by the gentamicin therapy, but he claims that he did not
know his dizziness was caused by Dr. Milum’s failure to properly
monitor the gentamicin medication after receiving notice from
the emergency room doctor of Vannoy’s reaction and Dr. Milum’s
failure to deviate from the gentamicin therapy thereafter.
Vannoy argues that this knowledge was required to trigger the
statute of limitations, and he relies on the cases of Wiseman v.
Alliant Hosps., Inc., 37 S.W.3d 709 (Ky. 2000) and Imes v.
Touma, 784 F.2d 756 (6th Cir. 1986).
Dr. Milum and Multicare Specialists counter by
asserting that the knowledge required under the Wiseman and Imes
cases is not that a person has an actionable negligence claim.
Rather, they argue that the statute of limitations began to
accrue once Vannoy knew, or by acting with reasonable care
should have known, that he had been harmed and that Dr. Milum’s
conduct may have caused that harm.
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They note that it is
undisputed that Vannoy knew in mid-1998 that his vestibular
damage was caused, at least in part, by the gentamicin therapy.
In addition, they note that it is undisputed that by the spring
of 1999, Vannoy had gathered all his medical records and had
taken them to an attorney (Holloway) for review.
Finally, Dr.
Milum and Multicare Specialists argue that it is undisputed that
in September 1999 the Vannoys met with Holloway to see if the
medicine was wrong.
Based on these undisputed facts, they argue
that the one-year statute of limitations began to accrue no
later than September 1999.
Vannoy’s argument that the statute of limitations does
not begin to accrue until he learned he had an actionable claim
is without merit.
In Conway v. Huff, 644 S.W.2d 333 (Ky. 1982),
the Kentucky Supreme Court, in a legal malpractice case,
analogized the facts in that case to facts in a hypothetical
medical malpractice case as follows:
Does the statute start to run when the
surgery patient discovers the sponge or when
an attorney tells the patient that legal
action lies against the surgeon? Obviously
the answer must be with the discovery that a
wrong has been committed and not that the
party may sue for the wrong. This
conclusion is supported by the holdings in
Tomlinson v. Siehl, Ky., 459 S.W.2d 166
(1970); Hackworth v. Hart, Ky., 474 S.W.2d
377 (1971); and Louisville Trust Co. v.
Johns-Manville Products, Ky., 580 S.W.2d 497
(1979).
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Id. at 334.
Likewise, in Graham v. Harlin, Parker & Rudloff,
664 S.W.2d 945 (Ky.App. 1983), overruled on other grounds by
Alagia, Day, Trautwein & Smith v. Broadbent, 882 S.W.2d 121 (Ky.
1994), this court held in a legal malpractice case that “[t]he
knowledge that one has been wronged and by whom starts the
running of the statute of limitations for professional
malpractice, not the knowledge that the wrong is actionable.”
Id. at 947, citing Conway, supra.
In short, based on the Conway
and Graham cases, we reject Vannoy’s argument that the one-year
period did not begin to accrue until he learned he had an
actionable claim. 3
We now turn to consider whether the circuit court
correctly applied Kentucky’s discovery rule to the undisputed
facts of this case.
In the Wiseman case, the Kentucky Supreme
Court once again defined the discovery rule when it stated that
“[t]he statute begins to run on the date of the discovery of the
injury, or from the date it should, in the exercise of ordinary
care and diligence, have been discovered.”
37 S.W.3d at 712,
quoting Hackworth v. Hart, 474 S.W.2d 377, 379 (Ky. 1971).
also KRS 413.140(2).
See
The discovery rule in cases such as this
3
The principle in the Conway and Graham cases has been followed by federal
courts interpreting and applying Kentucky’s discovery rule. These cases
include Drake v. B.F. Goodrich Co., 782 F.2d 638 (6th Cir. 1986); Imes v.
Touma, 784 F.2d 756 (6th Cir. 1986); Gregory v. Poor, 862 F.Supp. 171 (W.D.
Ky. 1994); Hazel v. General Motors Corp., 863 F.Supp. 435 (W.D. Ky. 1994);
Blanton v. Cooper Indus., Inc., 99 F.Supp. 2d 797 (E.D. Ky. 2000); Michals v.
Baxter Healthcare Corp., 289 F.3d 402 (6th Cir. 2002).
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was refined by the Kentucky Supreme Court in Louisville Trust
Co. v. Johns-Manville Prods. Corp., 580 S.W.2d 497 (Ky. 1979).
Therein, the court stated that “[a] cause of action will not
accrue under the discovery rule until the plaintiff discovers or
in the exercise of reasonable diligence should have discovered
not only that he has been injured but also that his injury may
have been caused by the defendant’s conduct.”
Id. at 501,
quoting Raymond v. Eli Lilly & Co., 371 A.2d 170, 174 (N.H.
1977).
In the Imes case, the court noted that the rule as
adopted in Louisville Trust applies to cases “when an injury
does not manifest itself immediately[.]”
784 F.2d at 758.
It is undisputed that Vannoy knew both of his harm,
vestibular damage and its associated symptoms, as well as the
fact that the gentamicin therapy was, at least in part, the
cause of that harm.
In addition, he had knowledge of Dr.
Milum’s role in prescribing and continuing the gentamicin
therapy.
Vannoy, upon obtaining his records, had in his hands
all relevant facts upon which he now rests his present claim of
negligence.
Vannoy’s knowledge is similar to that of the claimants
in the Hazel, Gregory, and Michals cases.
In Hazel, the
claimant knew both of the extent of his injuries and the fact
that they were due to a fuel-fed fire derived from the ruptured
fuel tank.
863 F.Supp. at 437.
In Gregory, the claimant knew
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the result of the medical procedure immediately upon waking in
the recovery room.
At that point in time, he was aware of the
harm and the fact that it was the result of the doctor’s
actions.
862 F.Supp. at 172.
Finally, in Michals, the court
noted that the claimant knew of the harm she had suffered as a
result of the silicone breast implants manufactured by Baxter’s
predecessor.
Further, the court found it could be inferred that
she attributed that harm to the implants based on the fact she
had them replaced.
289 F.3d at 404.
In each of the above cases, the court found it was
sufficient that the claimant knew both the harm and the cause of
that harm.
By knowing the cause of the harm in these cases, the
claimant then knew, or should have known, of the relationship of
the defendant’s actions to the cause of that harm.
case herein.
Such is the
Vannoy concedes that he knew by the summer of 1998
both the harm he had suffered and the cause of that harm.
By
obtaining his medical records and by considering the content of
those records in light of Dr. Milum’s role in prescribing the
drug, Vannoy knew, or should have known, of Dr. Milum’s role in
relationship to the gentamicin therapy.
Further, Vannoy’s knowledge was not as limited as that
possessed by the claimants in the Louisville Trust, Imes, and
Wiseman cases.
In Louisville Trust, the claimant knew of his
exposure to asbestos dust and fibers long before he was
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diagnosed with the resulting cancer.
It was not until he knew
of both the resulting harm and the cause of that harm that the
statute of limitations was triggered.
580 S.W.2d at 498.
In
Imes, the claimant knew of the harm before he knew of the cause
of that harm.
He knew the metal plate had snapped, accompanied
by the resulting fracture of his femur.
However, it was not
until he later obtained medical records that he became aware of
the fact that the harm was due to “inadequate solidarity” from
the first medical procedure.
784 F.2d at 756-57.
Likewise, in
Wiseman, the claimant knew immediately following the 1989
procedure that she suffered from unexplained pain.
However, it
was not until the piece of uterine probe was discovered and
removed in 1996 that she knew the cause of that pain was related
to the 1989 procedure.
37 S.W.3d at 710-11.
In each of these
cases, the claimant lacked information related either to the
harm or to the cause of that harm.
The lack of information relating to one of the two
necessary factors present in the Louisville Trust, Imes, and
Wiseman cases is not present in this case.
Vannoy did not have
a latent injury that developed over time well after the
defendant’s actions had taken place.
Nor is there any dispute
in this case as to Vannoy’s knowledge that the gentamicin
therapy was, at least in part, a cause of his vestibular damage.
In addition, Vannoy knew of Dr. Milum’s role in prescribing and
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continuing the gentamicin therapy.
Further, it is undisputed
that Vannoy possessed this knowledge no later than September
1999, well before his claim was filed in March 2002.
Finally, Vannoy argues that the issue of when he knew
or should have known the required factors is a question of fact
for the jury.
While the issue may be a question of fact subject
to a jury’s determination in some cases, we disagree that a
genuine issue of material fact exists in this case.
Vannoy
possessed the requisite knowledge to trigger the one-year
statute of limitations by no later than September 1999.
As he
did not file his complaint in the circuit court until March
2002, the circuit court correctly ruled that the complaint
should be dismissed as untimely.
The judgment of the Hopkins Circuit Court is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Daniel N. Thomas
Hopkinsville, Kentucky
C. Thomas Miller
James A. Sigler
Paducah, Kentucky
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